Senate Bill No. 728
(By Senators Sprouse and Sypolt)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §15-5-6 and §15-5-19a of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§61-6-1a of said code, all relating to prohibiting the taking
of lawfully possessed firearms and ammunition during a
declared state of emergency or riot.
Be it enacted by the Legislature of West Virginia:
That §15-5-6 and §15-5-19a of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §61-6-1a of said
code be amended and reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-6. Emergency powers of Governor.
(a) The provisions of this section
shall be are operative only
during the existence of a state of emergency. The existence of a
state of emergency may be proclaimed by the Governor or by
concurrent resolution of the Legislature if the Governor in
such
the proclamation, or the Legislature in
such its resolution, finds that an attack upon the United States has occurred or is
anticipated in the immediate future, or that a natural or man-made
disaster of major proportions has actually occurred or is imminent
within the state, and that the safety and welfare of the
inhabitants of this state require an invocation of the provisions
of this section.
Any such The emergency, whether proclaimed by the
Governor or by the Legislature,
shall terminate terminates upon the
proclamation of the termination thereof by the Governor, or the
passage by the Legislature of a concurrent resolution terminating
such the emergency.
(b) So long as such When a state of emergency exists
pursuant
to subsection (a) of this section, the Governor
shall have has and
may exercise the following additional emergency powers:
(a) (1) To enforce all laws
and rules
and regulations relating
to the provision of emergency services and to assume direct
operational control of any or all emergency service forces and
helpers in the state;
(b) (2) To sell, lend, lease, give, transfer or deliver
materials or perform functions relating to emergency services on
such terms and conditions as he or she
shall prescribe prescribes
and without regard to the limitations of any existing law and to
account to the State Treasurer for any funds received for
such the
property;
(c) (3) To procure materials and facilities for emergency
services by purchase, condemnation under the provisions of chapter
fifty-four of this code or seizure pending institution of condemnation proceedings within thirty days from the seizing
thereof and to construct, lease, transport, store, maintain,
renovate or distribute such materials and facilities. Compensation
for property so procured shall be made in the manner provided in
chapter fifty-four of this code;
(d) (4) To obtain the services of necessary personnel,
required during the emergency, and to compensate them for their
services from his or her contingent funds or
such other funds as
may be available to him or her;
(e) (5) To provide and compel the evacuation of all or part of
the population from any stricken or threatened area within the
state and to take
such steps
as are necessary for the receipt and
care of
such the evacuees;
(f) (6) To control ingress and egress to and from a disaster
area, the movement of persons within the area and the occupancy of
premises therein;
(g) (7) To suspend the provisions of any regulatory statute
prescribing the procedures for conduct of state business or the
orders, rules or regulations of any state agency, if strict
compliance therewith would in any way prevent, hinder or delay
necessary action in coping with the emergency;
(h) (8) To utilize
such available resources of the state and
of its political subdivisions
as that are reasonably necessary to
cope with the emergency;
(i) (9) To suspend or limit the sale, dispensing or
transportation of alcoholic beverages,
firearms, explosives and combustibles;
(j) (10) To make provision for the availability and use of
temporary emergency housing; and
(k) (11) To perform and exercise
such other functions, powers
and duties
as that are necessary to promote and secure the safety
and protection of the civilian population.
(c) No The powers granted under this section
may be
interpreted to do not authorize the seizure or confiscation of a
firearm from a person unless that firearm is unlawfully possessed
or unlawfully carried by the person, or the person is otherwise
engaged in a criminal act.
§15-5-19a. Possession of firearms during a declared state of
emergency.
Notwithstanding any provision of this article to the
contrary:
(1) No The powers granted under this article to state or local
authorities
may be interpreted to do not authorize the seizure or
confiscation of a firearm from a person during a declared state of
emergency unless that firearm is unlawfully possessed or unlawfully
carried by the person, or the person is otherwise engaged in a
criminal act;
and
(2) This article does not authorize:
(A) Any prohibition or impairment of the otherwise lawful
possession of privately owned firearms or ammunition;
(B) Any prohibition on the carrying of handguns, either openly
or concealed, by any person licensed to carry concealed handguns or authorized by the laws of this state to carry concealed handguns
without a license; or
(C) Any prohibition of the otherwise lawful carrying of any
firearm or acquisition of any firearm or ammunition, as protected
by an individual's right under the Constitution of this state to
keep and bear arms for the defense of self, family, home and state,
and for lawful hunting and recreational use.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 6. CRIMES AGAINST THE PEACE.
§61-6-1a. Control of riots and unlawful assemblages.
(a) Members of the
department of public safety State Police,
sheriffs and mayors, and those acting under their order, may, when
engaged in suppressing a riot, rout or unlawful assemblage, cordon
off any area or areas threatened by
such the riot, rout or unlawful
assemblage, and may take all actions which are necessary and
reasonable under the emergency to restore law and order, and
such
the actions may be, but are not limited to, the following:
(a) (1) Prohibit the sale, offering for sale, dispensing,
furnishing or transportation of
firearms or other dangerous weapons
other than firearms or ammunition, dynamite or other dangerous
explosives in, to or from such areas.
(b) (2) Prohibit the sale, offering for sale, dispensing,
furnishing or consumption of alcoholic beverages or nonintoxicating
beer in a public place in such areas, and prohibit the
transportation of alcoholic beverages or nonintoxicating beer in,
to or from such areas.
(c) (3) Impose curfews, as required, to control movement of
persons in, to and from such areas.
(d) (4) Enter a private dwelling or other building or other
private place in such areas when in fresh pursuit of a rioter, when
in search of a sniper who has fired upon a person from such a
dwelling or other building or place or when in search of
firearms,
other dangerous weapons
other than firearms or ammunition, dynamite
or other dangerous explosives when there is reason to believe that
such the items are stored in the
said dwelling, building or place
and that they will be removed therefrom before a search warrant
could be obtained.
(b) No person
shall wilfully may willfully fail to obey a
lawful order of any mayor, sheriff, deputy sheriff, municipal
police officer, member of the department of public safety, or other
officer, given pursuant to this section.
(c) Notwithstanding any provision of this section to the
contrary, this section does not authorize:
(1) Any prohibition or impairment of the otherwise lawful
possession of privately owned firearms or ammunition;
(2) Any prohibition on the carrying of handguns, either openly
or concealed, by any person licensed to carry concealed handguns or
authorized by the laws of this state to carry concealed handguns
without a license; or
(3) Any prohibition of the otherwise lawful carrying of any
firearm or acquisition of any firearm or ammunition, as protected
by an individual's right under the Constitution of this state to keep and bear arms for the defense of self, family, home and state,
and for lawful hunting and recreational use.
(d) Any person who violates
an a lawful order given pursuant
to the authority of this section
shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than five hundred dollars, or
imprisoned confined in
the county
jail not more than six months, or both fined and
imprisoned
confined.
NOTE: The purpose of this bill is to strengthen the
prohibition of the taking of lawfully-owned firearms and ammunition
in a declared state of emergency or riot.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.